The Chair suggests that the two amendments be taken together. Separate decisions may be taken, if necessary.
Censorship of Publications Bill, 1967: Report and Final Stages.
I move amendment No 1:
In page 2, line 38, before "make" to insert "and in accordance with the procedures therein prescribed".
This amendment is related to the fact that under the Censorship of Publications Bill before us in section 3 books which have been unbanned automatically by section 2, after the passage of 12 years from their first banning, may be rebanned. The first subsection of section 3 reads as follows:
The Censorship of Publications Board may, under section 7 of the Act of 1946, make a further prohibition order in respect of any book in respect of which a prohibition order has ceased or will cease to have effect by virtue of section 2 of this Act.
The purpose of our amendment is to ensure that in deciding to reban a book the Censorship of Publications Board must re-examine the book in accordance with the procedures laid down in the 1946 Act. Members of the House who were present during the Committee Stage will remember that the Minister then and earlier assured us that section 7 of the 1946 Act says and I quote:
If the Censorship Board, having duly examined a book, are of opinion—
(a) that it is indecent or obscene, or
(b) that it advocates the unnatural prevention of conception or the procurement of abortion or miscarriage or the use of any method, treatment or appliance for the purpose of such prevention or procurement,
and that for any of the said reasons its sale and distribution in the State should be prohibited, they shall by order prohibit such sale and distribution.
In view of the fact that the words "having duly examined a book" are contained in section 7, to which reference is made by subsection (1) of section 3 of the present Bill, this meant that they would have to re-examine the book. But some of us contended that the words could be interpreted as referring to the original examination. The Censorship Board, having duly examined a book, might plead that they had duly examined it in 1942, or 1954 and, therefore, they were under no obligation, under the present Bill, to re-examine it.
I put down an amendment on Committee Stage to require that they re-examine it and it was suggested by some Senators that this word "re-examine" was not sufficiently precise. The Minister assured us that since the phrase "under section 7 of the Act" is in, there would be a requirement upon the board to comply with all the provisions of section 7 of the 1946 Act and also of section 6 which prescribes the way in which a book must be examined. It seemed to me that since the board could plead that they had already, years before, duly examined it, they might—under the Bill as at present drafted—fail to re-examine a book before rebanning it. Therefore, I decided to put down a freshly-worded amendment to require in writing—to insert it in the Bill— that they should do this in accordance with the procedures prescribed under section 7 of the 1946 Act.
I think it should be clear that the requirement imposed upon the board by the words I am asking to have inserted is a requirement which the Minister assures us is already upon the law and all I am trying to do is to have spelled out what the Minister tells us is, by implication, there. I do not have to stress the fact that it is necessary often to have a thing spelled out in a Bill because a Bill is interpreted as it stands and the Minister's speech is not incorporated in it.
In view of the fact that there might be some ambiguity about this, it seemed to me that we ought specifically to say that the rebanning of a book must be, again, in accordance with the procedures laid down in section 7 of the 1946 Act. The implication of the second amendment, proposed by Senator FitzGerald, is precisely the same; "having further examined the book in question" being the phrase used. On balance, I think the phrase I suggested would be more precise but I do not feel very strongly as between these two amendments. I feel it is necessary to put into the Bill what the Minister assures us is the intention of the Bill.
I second the amendment. I think there is ambiguity in the section as it stands. I think the amendment will remove this. There is no conflict between us and the Minister as to the fact that this is what he intends by the section and I think it would be advantageous to the Bill to have it spelled out in this way.
I think, on balance, that my amendment is better but I am open to argument on the point. The reason I put it down was that I had hoped the Minister would table an amendment. He made what can be described as encouraging noises the last day but whatever happened in between he got railroaded in some way and no amendment transpired. Then, I read Senator Sheehy Skeffington's amendment when I came to draft one and I thought, on balance, it might not cover the point. It seemed to me it was arguable, under his amendment, that the board could hold they were carrying out the procedures therein prescribed, having examined it the first time, without re-examining it. It did not seem to me that Senator Sheehy Skeffington's wording was sufficiently tight. Although I am not convinced my wording is in any way perfect, I thought it slightly better for discussion and so that we could at least set one against the other, I put down this amendment in this form.
I am quite clear from the discussion we had the last day—unless the Minister confuses me when he comes to reply—that something of the kind is needed. The more I read the 1946 Act and what is now being done under the amending Act, the more convinced I became that, without this, there is a danger that the intentions of the Minister could be frustrated by the board taking a different interpretation. The Minister might say that this is not very likely but, perhaps or perhaps not, in this country it is quite clear that what is said by the Minister or anybody else in debate in the House has no binding legal effect, and we have no assurance that the board will go beyond the law to do what this House or the Minister might have interpreted the law as meaning, if they did not interpret it in that way. We are imposing a pretty onerous task on them. If one were a member of the board, one might be tempted in regard to many of these books to contend that one look at the cover might be enough. I presume that one look at the cover is not examination as intended under the original Act. In view of the temptation of shortcuts, I do not think we should encourage shortcuts by leaving an opening.
It seems to me that one or other of these amendments is required and, on balance, I prefer mine, but I look forward to hearing from the Minister what happened between the last day and today for him to withdraw his apparent agreement that something needed to be done.
I should like to support the suggestion that either of these amendments is, I think, almost necessary. We know things change: that is why this Bill is before us. Opinions change as to reasons why books should be banned. I think it is necessary that they should be reexamined at the stage when they are to be rebanned. I have no real choice as between the two amendments although, on looking at them, I think Senator FitzGerald's one is more direct and to the point, leaves less to the imagination and, on that account, I would support it but I am quite certain that either would meet the point reasonably well.
I have not been convinced by anyone so far that either of these amendments is necessary. It seems to me that the Bill is quite clear as it stands, that any of these further prohibition orders must be made under section 7 of the Act of 1946. It seems to me that before a prohibition order can be made, a book must be unbanned; in other words, it is not a banned book, it is an ordinary book which may or may not be banned when they get around to looking at it again. I cannot see how, under the 1946 Act, it could be held to be open to them to look at a book which was not at that moment to be banned and say: "Oh, we need not look at it again, we looked at it on a previous occasion". If you are going to ban a book, you must go through the procedure of the 1946 Act at the time you are banning it.
It may well be that the Minister is prepared to agree that even if the Bill is clear, if it can be spelled out twice over, no harm is done. I rise to urge him—if he is going to accept either amendment—that he should accept Senator Sheehy Skeffington's because I am terrified of the phrase "having further examined the book in question". It seems to me that when books such as the one about which Senator Ó Donnabháin is worried, "Land of Spices", are examined again that it must be done. You cannot tolerate the position in which any censorship board at any time in the future might sit down and say: "Oh, yes, with regard to such a book, let us have another look at it and see whether we agree with what was done before". The fact that a book was banned before is utterly irrelevant. Let us be quite clear on that. The procedure to be carried out is that the book is looked at completely anew. Therefore, I hate the term "having further examined the book in question", which, I think, gives rise to a series of further implications. If the Minister were to accept either amendment, I would strongly recommend him to agree to Senator Sheehy Skeffington's.
Listening to the discussion and reading the Act, it seems to me that the books must be read. How can you pick out the ones you will continue to ban unless they are read?
By the covers.
They must be re-read, all of them, and I cannot see any censorship board sitting down to read 400 or 600 books before they were banned. You must have some sort of an amendment such as Senator Sheehy Skeffington has put down if some of the books must be re-read. Otherwise you are leaving the situation that a book could be banned forever and there would be no redress unless somebody appealed. As we have heard from the discussion, there have been very few appeals. I think it would require something like this to be as fair as it is possible to be fair under a censorship Act.
The word "may" is in the section.
"May" hardly means anything. It means that if they want to they can.
There are two pitfalls in censorship legislation. The first is to be too ambiguous and too woolly in drafting. There is another equally dangerous thing, that is, to have redundant language in which there is, I venture to say, so much verbiage because I am going back again to the plain meaning of section 3 related to section 7 of the 1946 Act. I said in the Seanad—but I did not give any guarantee—that I would have a cold look at the matter to see whether or not I might be wrong in my contention that section 3, read with section 7, meant quite clearly that the Censorship Board would have to re-examine a book before making a prohibition order. It is quite clear that under section 2 that the book becomes automatically unbanned after twelve years. Section 3 says: "The Censorship of Publications Board may under section 7 of the Act of 1946, make a further Prohibition Order..."——
Does that mean that they can make it on their own or do they have to wait until it is processed to get it banned?
Yes, the whole procedure starts again.
From the very beginning?
No, the Minister has told us that on their own initiative they can reban.
Yes, they can do that at the moment, too.
Quite.
As regards the second banning process, there is no change in the process as it operates in regard to a first banning or a second, third or fourth banning. Under section 2 a book becomes automatically unbanned. The board may under section 7 of the 1946 Act make a further Prohibition Order against books that have become unbanned by way of a private representation or by way of customs and excise representation. At any rate, whatever the channel through which the board proceed to consider whether or not a book should be rebanned, the fact of the matter is that they can only reban a book under section 7 of the 1946 Act. Section 7 says:
If the Censorship Board, having duly examined a book, are of opinion—
(a) that it is indecent or obscene, or .... they shall by order prohibit such sale and distribution.
This section, related to section 3 of the Bill, places the onus on the Censorship Board to duly examine the book before they can make an order. If that is not one and one making two and unambiguous and without any doubt, I cannot see what it is.
This was my view originally but the criticism was so strong that at the end of the evening I thought that for some reason our mental processes might not appreciate what was said and I agreed to have a good look at it. I did so and I am firmly convinced that my original contention was right and that the amendment would mean tautology in the Bill. I think it is bad drafting. I like to see a Bill emerging from the Oireachtas that is clean, unambiguous and which contains neither too much nor too little but simply sets out the plain meaning of what was intended. The plain meaning is that section 3 of this Bill and section 7 of the 1946 Act are directly related and the onus to examine under section 7 of the 1946 Act is the onus that applies to the rebanning process which the board may engage in under this Bill. I am fortified in that opinion by the draftsman and by Judge Conroy, who sees no point at all in the amendment. To be candid, he thinks it is quite straightforward and indeed the implication in the amendment is that for some reason the members of the board will not do their duty. That is the practical implication that the board appointed by the Minister will not do their duty properly by examining the book.
That interpretation would explain Judge Conroy's attitude.
I think it is a sensible enough attitude. Anyway whether the amendment goes in or not we are dependent on the bona fides of the members of the board, because no amount of legal draftsmanship will make the members examine a book if they do not want to. Let us face it. If you appoint members on the board who are so unscrupulous that they will not properly examine a book before making an order it is just the bad luck of the Minister or Government concerned. I am, of course, certain in regard to the present board that they are all conscientious people. No matter what you write into this Bill we are dependent on their competence and integrity. That is why it is better to leave it as it is. I am quite clear in my mind and I am fortified by advice that my interpretation of the Bill as drafted now meets precisely the points intended in the two amendments. Therefore, the two amendments are superfluous and only make the Bill that much more clumsy.
The Minister had a revealing phrase at the beginning of his last speech. He said "drafting can be too ambiguous or too woolly" as if a measure of ambiguity or a measure of woolliness was desirable.
Very dialectical reasoning.
(Longford): The Minister has failed to tell us which amendment we should vote for in the event of his accepting one of them and I think that he has avoided that issue.
I have said I am not accepting the amendments.
(Longford): In the event of your changing your mind?
The Minister should instruct the Members of his Party how to vote against it.
It has occurred in the past that the Censorship Board have banned a book on one or two passages and it was revealed that it was the practice of an earlier board—not the present board—simply to have a quick glance at certain marked passages and ban the book. Now the Minister's contention seems to be that the word "under" in the section as it stands at present in the phrase "under section 7" means that all the procedures prescribed by section 7 must be applied but he did not answer at all my suggestion that it could be argued that one of these requirements, the one that says "having duly examined" has been complied with since they have already years before duly examined it and that they could have a loophole there for not re-examining it. It is for this reason that I consider it worthwhile to spell out again that it is not merely under the section but in accordance with all the procedures therein laid down.
This is a question of interpretation and I am sure the Minister will agree that his interpretation given in the Seanad or the interpretation given by Judge Conroy has no binding effect in law however correct it may be, whereas if we spelled this out in the Bill he has not shown that any harm can be done by it. I feel that keeping the Bill as it is goes beyond the bounds of acceptable ambiguity. The Minister has indicated that a certain measure of ambiguity is a valuable thing, which I would be inclined to dispute but I feel that it is necessary to spell it out and, therefore, although I felt at first that Senator FitzGerald was right in saying "further examine", I think, now that the original spelling out of "in accordance with the procedures therein prescribed", insists that all the procedures be recomplied with, the Minister agrees it should be recomplied with but he is reluctant to say so in print. Why?
He has told the Senator.
Because it is unnecessary.
Amendment put.
The Seanad divided: Tá, 15; Níl, 29.
Tá
- Conlan, John F.
- Crowley, Patrick.
- Davidson, Mary F.
- FitzGerald, Garret M.D.
- Jessop. W. J. E.
- McAuliffe, Timothy.
- McDonald, Charles.
- Malone, Patrick.
- Mannion, John.
- Murphy, Dominick F.
- O'Reilly, Patrick (Cavan).
- O'Sullivan, Denis J.
- Rooney, Éamon.
- Sheehy Skeffington, Owen L.
- Stanford, William B.
Níl
- Boland, Gerald.
- Brennan, John J.
- Brosnahan, Seán.
- Browne, Seán.
- Connolly O'Brien, Nora.
- Dolan, Séamus.
- Eachthéirn Cáit Uí.
- Egan, Kieran P.
- Farrell, Joseph.
- Fitzsimons, Patrick.
- Flanagan, Thomas P.
- Honan, Dermot P.
- Killilea, Mark.
- McGlinchey, Bernard.
- McGowan, Patrick.
- Martin, James J.
- Nash, John Joseph.
- Ó Donnabháin Seán.
- O'Kennedy, Michael.
- Ó Maoláin, Tomás.
- O'Reilly, Patrick (Longford).
- Ormonde, John.
- O'Sullivan, Ted.
- Ryan, Eoin.
- Ryan, James.
- Ryan, Patrick W.
- Ryan, William.
- Teehan, Patrick J.
- Yeats, Michael.
Tellers: Tá, Senators Sheehy Skeffington and Stanford; Níl, Senators Browne and Farrell.
Amendment declared lost.
I move amendment No. 2:
In page 2, line 38, before "make" to insert "having further examined the book in question".
An Leas-Chathaoirleach
Is this amendment being withdrawn?
An Leas-Chathaoirleach
Is it being pressed?
Amendment put.
The Seanad divided: Tá, 15; Níl, 29.
Tá
- Conlan, John F.
- Connolly O'Brien, Nora.
- Crowley, Patrick.
- Davidson, Mary F.
- FitzGerald, Garret M.D.
- Jessop, W.J.E.
- McAuliffe, Timothy.
- McDonald, Charles.
- Malone, Patrick.
- Mannion, John.
- Murphy, Dominick F.
- O'Reilly, Patrick (Cavan).
- O'Sullivan, Denis J.
- Sheehy Skeffington, Owen L.
- Stanford, William B.
Níl
- Boland, Gerald.
- Brennan, John J.
- Brosnahan, Seán.
- Browne, Seán.
- Dolan, Séamus.
- Eachthéirn, Cáit Uí.
- Egan, Kieran P.
- Farrell, Joseph.
- Fitzsimons, Patrick.
- Flanagan, Thomas P.
- Honan, Dermot P.
- Killilea, Mark.
- McGlinchey, Bernard.
- McGowan, Patrick.
- Martin, James J.
- Nash, John Joseph.
- Ó Donnabháin, Seán.
- O'Kennedy, Michael.
- Ó Maoláin, Tomás.
- O'Reilly, Patrick (Longford).
- Ormonde, John.
- O'Sullivan, Ted.
- Ryan, Eoin.
- Ryan, James.
- Ryan, Patrick W.
- Ryan, William.
- Sheldon, William A.W.
- Teehan, Patrick J.
- Yeats, Michael.
Tellers: Tá, Senators Garret FitzGerald and McDonald; Níl, Senators Browne and Farrell.
Amendment declared lost.
Bill received for final consideration and passed.